ALJDEC decisions subject to certification as final

2021A-03081-RFA-LS-ROC · Registrar of Contractors · 2023-02-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Adam and Jacqueline Novak,

COMPLAINANT

Christian A Carpenter

DBA: Everything Residential,

License No. ROC 323225,

RESPONDENT

No. 2021A-03081-RFA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 20, 2023

APPEARANCES: Complainants Adam and Jacqueline Novak appeared on their own behalf. Respondent Christian A. Carpenter doing business as Everything Residential was represented by Andrew DiCarlo. The Arizona Registrar of Contractors was represented by Assistant Attorney General Elizabeth A. Campbell.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

The Arizona Registrar of Contractors (Registrar) issued License No. 323225 to Respondent.

On or about July 4, 2021, the Registrar received a Complaint against Respondent from Complainants alleging poor work with respect to Respondent’s work on their home.

As a result of the workmanship complaint, the Registrar issued a Citation against Respondent charging possible violations of A.R.S. § 32-1154(A)(2)(b); A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108(a) and (b); and A.R.S. § 32-1154(A)(22).

Respondent filed a timely answer to the Citation. An administrative hearing was held. In her February 8, 2022 Decision, Administrative Law Velva Moses-Thompson considered Respondent’s arguments and concluded that Respondent had violated the provisions of the Registrar’s statute as noticed in the Citation.

On or about March 2, 2022, the Registrar issued a Final Administrative Decision and Order finding the violations and imposing a one day suspension.

Complainant then filed a claim with the Residential Contractors’ Recovery Fund (the Fund) to recover the cost repairing and completing the project. As part of the claim process, Complainant submitted multiple bids that Complainant had received for the project.

The Registrar issued a Notice of Claim for Administrative Payout, finding that Complainant’s actual damages were $4247.88. Respondent requested a hearing, believing the payout was too high. Complainant did not contest the amount of the administrative payout. The Registrar referred the matter to the Office of Administrative Hearings (OAH) for an evidentiary hearing.

Hearing was held on January 20, 2023.

Hearing Evidence

The written directive from the Registrar specified that the following items required corrective work to be completed:

Complaint Item 3: The mast bathroom bathtub was not installed correctly. The tub was not connected to the plumbing pipe therefore the bathtub water flooded the pantry and garage causing a third major water damage leak in the home. The whole ceiling and walls in the pantry were removed and redrywalled. Again no official water restoration was conducted by a certified company. We are requesting verification the plumbing errors on behalf of Everything Residential do not cause long term damage to our home. This was all outside of the scope of the project. We are seeking a report this area that had extensive water damage due to the negligence of Everything Residential.

Investigator’s Observation: Water stains noted the lower south (S) and lower east (E) walls and baseboards of the Pantry below the lower shelves.

Governing Rule: Workmanship Rule: A.R.S §32-1154(A)(3), namely R4-9-108(A) A contractor shall perform all work in a professional and workmanlike manner and, (B) A contractor shall perform all work in accordance with any applicable building codes and professional industry standards. For work to be performed in accordance with professional industry standards, a contractor shall use skills, prudence, and diligence in performing and completing tasks undertaken that the completed work meets the standards of similarly licensed contractor possessing ordinary skills and capacity.

Complaint Item 5: Threshold in the master bathroom not cut correctly and has a one inch gap.

Investigator’s Observation: Complainants allege that the respondent failed to properly finish the ends of the transition threshold between Master Bedroom and Master Bathrom, by failing to follow contours of adjoin baseboards. Respondent stated that this was a punch list item and would be corrected.

Governing Rule: Workmanship Rule: A.R.S §32-1154(A)(3), namely R4-9-108(A) A contractor shall perform all work in a professional and workmanlike manner.

Complaint Item 7: Master bathroom tile installed incorrectly. It is not level and smooth, it have 5 distinct areas where the tile is raised and it appears there is a mound of mortar creating the tile to pop up and not lay flat consistently throughout the project space.

Investigator’s Observation: Areas of unevenly laid tiles on the west (W) wall of Master Bathroom above vanity area.

Governing Rule: Workmanship Rule: Refer to A.R.S §32-1154(A)(3), namely R4-9-108(A) cited above.

Complaint Item 9: Doorstopper in master bathroom water closet missing and not installed.

Investigator’s Observation: Missing doorstopper on the baseboard of the north (N) wall in the Master Bathroom water closet room.

Governing Rule: Workmanship Rule: Refer to A.R.S §32-1154(A)(3), namely R4-9-108(A) cited above.

Complaint Item 13: Caulking from the granite installation stained the new flooring and not has not been properly cleaned or repaired.

Investigator’s Observation: Improper application/finish of caulking between floor tile and south (S) wall behind the Master Bathroom freestanding tub.

Governing Rule: Workmanship Rule: Refer to A.R.S §32-1154(A)(3), namely R4-9-108(A) cited above.

. . . .

Complaint Item 16: Water damage on garage wall.

Investigator’s Observation: Water staining and bubbling finish noted on east (E) wall above side access door, and above and below wall vent area.

Governing Rule: Workmanship Rule: Refer to A.R.S §32-1154(A)(3), namely R4-9-108(A) cited above.

Shaquira Adebuele, Legal Assistant II for the Fund, testified that she reviewed the contract, the written directive from the Registrar that had been issued, Judge Moses-Thompson’s February 8, 2022 Decision regarding the underlying complaint, and bids submitted by Complainants in calculating Complainants’ actual damages. Ms. Adebuele had to use different bids to determine costs of materials and labor necessary to correct the project. Based on Ms. Adebuele’s calculations, a total of $4247.88 payable from the Fund was appropriate.

Respondent questioned various aspects of the bids that Ms. Adebuele relied upon. Specifically, Respondent pointed out that the bid Ms. Adebuele used included charges for Mirror/Shower door labor minimum of $70.00 and Framing labor minimum of $140.00 that were not related to issues identified in the written directive, but were part of the guest or hall bathroom.

Respondent also presented the testimony of Anna Taliaferro who was working at Respondent during the investigation of the workmanship complaint. Ms. Taiaferro provided her opinions as to what steps would need to be taken to correct some of the items that identified in the written directive and were not corrected.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

A.R.S. § 32-1132(A) provides that “[a]n award from the fund is limited to the actual damages suffered by the claimant as a direct result of the contractor's violation but shall not exceed an amount necessary to complete or repair a residential structure or appurtenance within residential property lines. . . .” Respondent bears the burden of proof to establish that the proposed payout from the Fund is incorrect by a preponderance of the evidence.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

After review of all the evidence, the Tribunal concludes that the award provided by the Fund accurately reflected Complainants’ actual damages. None of the discrepancies Respondent pointed out were significant in nature.

Accordingly, Complainant is accordingly entitled to a payout from the Fund in the amount of $4247.88.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order, Complainant receive a payout from the Residential Contractors’ Recovery Fund in the amount of $4247.88.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty (40) days from the date of that certification.

-54864001

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-137160-45720000Done this day, February 9, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically or by mail to:

Martín Quezada, Director

Registrar of Contractors

By: OAH Staff-54864001

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-137160-45720000